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Case Notes and Divorce: A Parent's Rights​​​​​​​

Case Notes and Divorce: A Parent’s Rights

Mr. Jones asks for copies of his son’s case notes and signs the HIPAA release form. Later that day, Mrs. Jones shows up irate. She is divorcing her husband and the court has given her responsibility for making medical decisions for her son. You’ve just angered one of your client’s parents — and placed yourself in legal jeopardy. If you counsel children, you can avoid this situation by understanding parental responsibilities during and after divorce.

Who decides?

The time a parent spends with a child and decision-making for the child are separate issues in child custody matters. When addressing decision-making responsibility, the courts take “in the best interest of the child” to heart. Courts may decide to split up decisionmaking responsibility by area. For example, both parents might be responsible for a child’s education, but only one parent is responsible for a child’s religious training.

Healthcare and access to the child’s case reports are usually clearly stated in the separation agreement that both parents sign. A separation agreement is basically a contract between the divorcing parents. If the language in the contract is ambiguous, the court considers the intent of the contracting parties. For example, the separation agreement might state both parents have joint decision making in school, religion, and extracurricular activities, but fails to mention healthcare decisions. The courts would likely construe there is joint responsibility for healthcare decisions too. The court routinely incorporates the separation agreement into the final divorce decree.

In the meantime…

Let’s back up a bit and talk about what happens before the divorce is final. Most states require a period of time between when the petition for divorce is filed with the court and when the divorce can be finalized through a decree. That time is usually 90 days, but in some cases, it can take up to a year for the divorce to be final. During this interim time, divorce proceedings involving children typically have what are called “temporary orders”. These court orders outline how parents will handle matters—such as medical decisions — before the divorce is final. The temporary orders and the separation agreement determine parental rights during and after the divorce respectively. These two documents dictate to the healthcare provider who has access to the child’s case notes.

Releasing records

If a parent who is divorced or in the process of a divorce asks you for the child’s medical records, you must have the parent sign a HIPAA compliant release form. You’ll also want to ask for a copy of the temporary orders if the divorce is pending, or a copy of the court approved separation agreement if the divorce is final. Check the legal document to see if it states that the parent has a legal right to the child’s case notes. If it does, you can proceed. If it doesn’t, releasing the record may constitute a breach of client confidentiality. One way to resolve the situation is to have both parents sign HIPAA forms to ensure the child’s privacy rights have been met. Keep the HIPAA compliant release and request in the child’s case notes. This way, there is a record in the child’s chart of who requested records and when they were requested.

Protect yourself

Child custody only determines who the child spends time with and when—not if- the parent has the right to the case notes. Although it would be unusual for a custodial parent not to have access to the child’s medical records, you still need to follow proper procedure to protect yourself from liability claims.

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